High Peak Borough Council (17 009 164)

The Ombudsman's final decision:

Summary: Mr X complains the Council has failed to properly investigate or take appropriate action in relation to a dangerous wall on the boundary of his property The Council’s failure to confirm its assessment that the boundary wall is not dangerous at the outset, and the lack of clarity and consistency in its communication with Mr X amounts to fault. The Council has agreed to remedy the injustice this has caused.

The complaint

The complainant, whom I shall refer to as Mr X complains the Council has failed to properly investigate or take appropriate action in relation to a dangerous wall on the boundary of his property.

Mr X also complains the Council has failed to respond to his correspondence or keep him informed of its investigation.

The Ombudsman’s role and powers

We investigate complaints of injustice caused by 'maladministration' and 'service failure'. I have used the word 'fault' to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

What I found

Under the provisions of Sections 77 and 78 Building Act 1984 a local authority has the power to ‘make safe’ buildings, structures or parts of buildings or structures that are considered to be dangerous.

The authority may apply to a magistrates’ court for an order requiring the owner to:

Cary out such work as may be necessary to obviate the danger; or if they choose, demolish the building or structure or part; or

Restrict its use.

The Council’s website states dangerous structures fall into two categories:

Imminently: structures which are at risk of collapse and must be secured for public safety. The owner will normally be recharged for emergency works carried out in these cases.

Hazardous: structures deemed unstable after a survey but not imminently dangerous. In these cases the owner is given reasonable time to remove the danger. Failure to respond may result in a Magistrates Court Order being obtained.

Key facts

Mr X contacted the Council in May 2017 to report concerns about the structural safety of the boundary wall between Property 1 and Property 2. Mr X owned Property 1 and was renovating it so that his parents could move in. He was concerned the boundary wall was wobbly and could collapse on his parents or visitors to the property.

As Mr X does not own the boundary wall, he is unable to remove or replace it.

The Council arranged for its agents to inspect the wall. The notes of this visit state:

“Wall is about 5-6m long slightly out of plumb and the height of the wall approximately 1.97m. The wall is in a poor state of repair and movement is visible at the rear most part.”

The agents recommended the Council to write to the owners of Property 2 advising them that repair and remedial works are necessary as a matter of urgency.

The Council wrote to the owner of Property 2 and their letting agent. These letters state:

“…boundary wall at the rear of your property between [Property 1 and Property 2] is in a poor state pf repair and remedial works are necessary to protect users of these properties from the danger of collapse as a matter of urgency.”

“Please confirm to the Building Control service when these works have been undertaken.”

According to the Council’s records Ms Y, the owner of Property 2’s mother contacted the Council to discuss the matter. Ms Y agreed the wall required attention and confirmed they were trying to establish who owned the wall. If Ms Y’s daughter owned the wall they would arrange for the remedial works.

There is no record of further correspondence with the owner of Property 2, or their representatives. Following Mr X’s requests for updates, the Council wrote to Mr X in early July 2017, it explained the

“The first stage in dealing with a dangerous structure is always to locate the owner and request they rectify the problem.”

The Council had asked the owner of Property 2 to carry out remedial works, but they were disputing ownership of the wall. The Council went on to confirm

“if the problem is not resolved the Council can consider taking action to make the wall safe by carrying out works in default and then seek to recover the costs from whoever transpires to be the owner.”

When Mr X chased for a further update, the Council confirmed it would not take any further action. It told Mr X that although its agents had recommended remedial works are carried out to ensure the wall’s long-term stability and safety, it was not imminently dangerous. The Council was not able to serve a notice under the Building Act, or carry out works in default.

The Council considered it was a civil matter between Mr X and his neighbour.

Mr X disputed this as his own surveyor had inspected the wall and reported it was in an unstable and dangerous condition, and remedial action was required immediately.

Mr X made a formal complaint about the Council’s failure to act. The Council did not respond to this complaint so Mr X has asked the Ombudsman to investigate.

In response to my enquiries the Council acknowledges the wall is in a poor state of repair but was not in imminent danger of falling over or collapsing. It does not consider the wall is dangerous or that the use of section 77 of the Building Act was necessary.

It states it wrote to the owners of Property 2 to make them aware of the wall’s condition and to request remedial measures.

The Council maintains it has properly investigated the alleged dangerous structure and taken appropriate action.

Both Mr X and the Council have responded to the draft decision. Mr X maintains the Council’s decision is wrong, and the wall is dangerous and requires immediate remedial action. He asserts the Council’s position is at odds with his own surveyor’s assessment, photographic evidence of the wall and government guidance on garden walls. Mr X would like the Council to re-assess its decision on the dangerous nature of the wall.

The Council invited it agents to comment on the draft decision. The agents state that the Building Control Engineer who carried out the assessment of the garden wall decided it was not in imminent danger of collapse. Th engineer discussed this with Mr X at the time of the visual inspection.

Although the engineer did not consider the wall to be dangerous at the time of inspection, they felt it was appropriate for the Council to write to the neighbour. Based on their experience the engineer considered that without any remedial works, the condition of the wall was likely to worsen over time resulting in it becoming unstable and potentially dangerous. The engineer recommended sending the letter Mr X’s neighbour to try and resolve the situation for all concerned.

The agents acknowledge that the phrase "as a matter of urgency" in this letter may have been misconstrued in this instance. However, they state that based on past experience if the letter had not been worded in this way the neighbour would have ignored it.

The agents also noted that in demolishing a dilapidated brick building at the end of the wall Mr X had probably removed a degree of lateral stability from the wall. There were clear signs of several bricks which appear to have been cut during this demolition which would have tied the wall into the outhouse and thus provided support.

The Council also asserts it has responded to Mr X’s complaint and correspondence.

Analysis

When considering complaints, we may not act like an appeal body. We cannot question the merits of the decision the Council has made or offer any opinion on whether or not we agree with the judgment of the Councils’ officers. Instead, we focus on the process by which the decision was made.

The Council’s agents inspected the boundary wall and concluded it was in was in a poor state of repair and required remedial work. They did not however conclude there was an imminent danger of it falling over or collapsing. This is a matter of professional judgement and a decision the agents were entitled to reach. Mr X and his surveyor disagree with this decision, but it is not the Ombudsman’s role to determine whose judgement is correct.

However, having reached this conclusion, it is curious that the agents recommended the Council write to the owner advising urgent repairs were necessary to protect against the danger of a collapse.

The agents state they were trying to assist Mr X resolve the situation. But writing to the owner in these terms suggests the agents were concerned about an imminent collapse, rather than the long-term stability and safety of the wall. This would have reinforced Mr X’s own belief that the wall was dangerous, as would the Council’s reference to a dangerous structure and the possibility of the Council carrying out works in default to make the wall safe.

As the Council does not consider the wall to be dangerous or in imminent danger of collapse its correspondence with the Mr X and the owner of Property 2 are inappropriate as they overstate the position. Particularly as the Council has not taken any follow up action. The agents acknowledge the phrasing of the letter to the owner could be misconstrued.

I consider the Council’s lack of clarity and consistency in its communication with Mr X regarding its assessment of the condition of the wall to be fault. The Council’s failure to clearly set out its assessment of the wall and the scope of its involvement at the outset has raised Mr X’s expectations and put him to unnecessary time and trouble.

Although the Council responded to most of Mr X’s correspondence between May and July 2017, it did not respond to his formal complaint and request to review its decision in July 2017. This failure to respond amounts to fault.

Agreed action

I recommended the Council apologise to Mr X for the lack of clarity and consistency in its communication and the failure to clearly set out its assessment that the boundary wall is not dangerous. It should also apologise for the failure to acknowledge or respond to Mr X’s complaint.

I also recommended the Council pays Mr X £100 in recognition of raised expectations and time and trouble Mr X has been put to by the faults identified above.

The Council has agreed to these recommendation, and should take this action within one month of the final decision.

Final decision

The Council's failure to confirm its assessment that the boundary wall is not dangerous at the outset, and the lack of clarity and consistency in its communication with Mr X amounts to fault causing Mr X an injustice.

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